Jackson

JUDGMENT

1. The Assessment commenced at 10am as arranged and concluded at 2.15pm without any lunch break but with many breaks requested by the Claimant because she was emotionally “overwhelmed”.
2. The Insurer conceded liability and the Claimant conceded she was not entitled to claim non-economic loss.
3. At some point it had been agreed that the Claimant’s mother Debra Lewis, who lives in Port Macquarie, was to give her evidence in support of past care for the Claimant by telephone.  However, prior to the conclusion of the Assessment Conference the Claimant conceded that she was no longer seeking past care and therefore there was no reason to call upon Ms Lewis to give evidence.
4. At the conclusion of the Assessment Conference it was clear that the parties could not agree on past treatment expenses without further information being obtained.  Further that there were other documents that the parties would need in order to consider their final submissions.
5. Given that it was going to take some time to gather all of this information the parties also agreed to make written submissions and accordingly directions were made to the parties that would facilitate my being able to prepare the Assessment many weeks later.
6. The following issues have arisen in this matter:
   1. What is the nature and extent of the Claimant’s injuries?
   2. What is the Claimant’s past economic loss?
   3. What is the Claimant’s future economic loss?
   4. What is the Claimant’s past treatment expenses?
   5. What is the Claimant’s future treatment expenses?
   6. What is the Claimant’s future care?

BACKGROUND

7. The Claimant is an attractive young lady who describes herself as an actor, model and beautician.
8. She was 24 as the time of the accident and is now 28.
9. She was born and raised in Port Macquarie where she obtained her Higher School certificate at about age 19 when she commenced receiving Centrelink payments.
10. After high school she completed a Certificate III in media and business studies and a double diploma in beauty therapy including massage all at Port Macquarie TAFE.
11. She has worked for about 12 months as a receptionist at an occupational therapy practice and has worked as a barista/waitress/bartender.
12. She states that prior to the accident she remained very active in sporting activities including martial arts, surfing, gymnastics, aerobatics, fire twirling and dancing.
13. She had hoped to obtain employment as a stunt performer so she continued with gymnastics and aerobatics.  She attended the gym twice per day, six to seven days per week undertaking weight training, cardio and boxing exercise classes.

The Accident

14. On the day of the accident she had driven from Port Macquarie to Sydney in order to participate in a modelling competition.
15. After the competition she was returning home at about 10.30pm in her Nissan Pulsar sedan when she became aware that she was being pursued by police using lights indicating for her to pull over her vehicle from lane three. The police vehicle was straddled over two lanes when the Insured’s vehicle had ignored police lights and overtaken (undertaken) the police vehicle and hit vehicle two. The Insured vehicle had to partly enter the claimant’s vehicle lane to go around the police vehicle. The Insured collided with the rear left passenger side of the Claimant’s vehicle causing it to spin out of control and end up 90 degrees to the roadway in which she was travelling. At the time of the collision she was travelling at about 55 kilometres per hour. She felt the accident was a violent one.
16. Obviously, police were on the scene and ambulance attended soon after.  The Claimant chose not to go to hospital and proceeded to drive slowly over the next four to five hours to the home of her boyfriend and his parents.
17. She claims that soon after she began that drive, she noticed severe pain developing in her neck and lumbar spine.
18. She attended upon her general practitioner Dr Kangwu on 3 September 2015 and he referred her to physiotherapy treatment and prescribed medications.  She undertook 24 physiotherapy sessions funded by the Insurer following which the Insurer declined to fund any further treatment.

WHAT IS THE NATURE AND EXTENT OF THE CLAIMANT’S INJURIES?

19. The Claimant claims soft tissue injuries to the cervical and lumbar spine and soft tissue injuries to both shoulders.
20. Her oral evidence described pain to her left shoulder and upper neck, the pain to the left shoulder being constant varying in intensity.  The neck pain was also constant, and the lower back pain was no more than intermittent.
21. The Claimant qualified Dr Thomas Sheehan occupational health and rehabilitation consultation who prepared a report in October 2016.
22. Dr Sheehan on examination noted no guarding but generalised tenderness over the cervical spine, general tenderness over the lumbar spine with marked tenderness present over the left sub-acromial space.  He though her right shoulder was normal but by comparison the left shoulder was quite restricted.  He diagnosed musculoligamentous/tears involving her cervical and lumbar spine and a trauma caused left shoulder supraspinatus tendinopathy associated with an adjacent subacromial bursitis.  He believed then that the injuries had stabilised.
23. Dr Sheehan then examined the Claimant in April 2019 and again took a history that she remains symptomatic and that she was troubled by significant symptoms.  Again, he noted tenderness particularly over the left supraspinatus tendon and to a lesser extent in the neck but with no guarding or muscle spams.
24. Dr Sheehan believed that she was DRE Category II in relation to her cervical and lumbar spine injuries giving each 5% Whole Person Impairment.  He believed that her left shoulder injury gave rise to a 10% Whole Person Impairment while her right shoulder was 8% Whole Person Impairment making a total of 22%.
25. The Insurer qualified Dr Lew Pierides who reported in August 2016 who noted that she had previously reported lower back pain and hip pain in January 2015 arising from sitting awkwardly as a physiotherapist.
26. Dr Pierides diagnosed a likely soft tissue injury to her cervical spine.
27. His prognosis was that he expected a full recovery within six weeks post-accident and given that it is now twelve months post-accident her current symptoms appear excessive.
28. He noted that she had had 24 physiotherapy sessions and that the physiotherapist had noted she was a long way from recovery.  Dr Pierides found this difficult to comprehend and opined that if the physiotherapist had not been able to settle her symptoms by now then further treatment was unlikely to be helpful.  He recommended she take Endep.  He thought she was DRE Category I for the cervical spine giving rise to 0% Whole Person Impairment and found she had full range of motion for both shoulders and therefore no assessable impairment for either shoulder.
29. Dr Pierides saw the Claimant again in March 2019.
30. He noted that she had had a further ten sessions of physiotherapy treatment now that she had moved to Brisbane which she had funded and that she only undertook physiotherapy when she was in significant pain.  She displayed a 70% range of cervical motion in all directions and that now she had restricted range of flexion and abduction in both shoulders when previously she had full range of motion in 2016.  She had an 80% range of lumbar motion in all directions.  She claimed ongoing pain that was more extensive than when he last assessed her.  He noted that there was no medical plausible condition that could get worse over time.
31. Dr Pierides thought she had fully recovered from any injuries she suffered in the accident and noted she had been working fulltime since late December 2018.  He thought her range of motion in the shoulders was self-limited.  He believed that it was important that she should continue to move and perform all normal activities despite symptoms as it is beneficial for pain, general health and a person’s state of mind.
32. In July 2017 the Claimant had also been examined by MAS Assessor Dr Murray Hyde-Page.
33. He noted the history that she first complained to her GP about neck pain and stiffness and pain shooting into her left shoulder and down her back.
34. He noted that physiotherapist Dr Paul Stewart noted she had suffered a whiplash injury to her neck and presented with pain and stiffness in the neck.  He commenced treatment and mobility in the cervical spine.  He did not refer to any treatment for her back and shoulder.  He noted that she only showed slow or partial improvement.
35. He noted she had ongoing neck pain and stiffness with pain shooting down her back and pain shooting into her arm although he noted good movement and function in the left shoulder.  He thought there was mild muscle guarding.
36. He found the Claimant to be rather anxious and seemed quite stressed by the questions and found it quite difficult to give a straightforward answer.  Nonetheless the thought there was no element of exaggeration or embellishment. 
37. He agreed with Dr Sheehan that she is DRE Category II with respect to the cervical region and assessed her as having 5% Whole Person Impairment.  Her lumbar spine injury he thought was DRE Category I – 0%.  She had full movement in the left shoulder and therefore he assessed that as being 0%.  He did believe that she had soft tissue injuries to the left shoulder, lumbar region and neck caused by the accident and I am happy to adopt his findings.
38. Dr Sheehan supplied a further opinion critical of the March 2019 report of Dr Pierides.  He notes that Dr Pierides repeats his belief asserting that any possible collision caused injuries would have ceased to cause any effects for longer than six weeks post-accident.

“Just how he can be so dogmatic temporally is beyond the understanding of this examiner and presumably for him to explain.”

39. Dr Sheehan is also critical about Dr Pierides’s findings on restrictions of movement for shoulders, neck and lumbar regions given that they were consistent with Dr Sheehan’s findings.  He also queried the comments that “there is no medically plausible condition that would get worse over time” and was critical that she should continue to move and continue to perform all activities given that pain represents the body’s response to injury and is meant to be precautionary to suggest rest and appropriate treatment in order to recover as soon as possible.
40. The claimant was also examined by Dr Parsonage, psychiatrist qualified on her behalf.  He noted her complaints and post-accident she was having intermittent but frequent symptoms of anxiety, depression and irritability.  Her self-esteem was reduced, and she felt miserable.  He diagnosed her as suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood secondary to the pain.  His prognosis was given that she was going to have persistent pain and ongoing disability that she would continue to experience ongoing secondary psychological problems for the foreseeable future he rated her as having 5% Whole Person Impairment.
41. The insurer arranged for her to be examined by Christopher Cocks psychiatrist.  He noted that she was currently working as a manager for a fast food restaurant chain called “Carl’s Jr” and that she is currently studying acting through the New York Film Academy on the Gold Coast.
42. He took a history of the accident and her social and work history.  She did not report any pervasive depression symptoms and that she stated she was not depressed, just frustrated.  She agreed she can experience anxiety, but this was not a pervasive problem for her.  She predominately gets upset in relation to experiencing musculoskeletal pain. She described herself as a happy person who was enjoying her studies at the Academy although she had some broken sleep.
43. He noted that at age 13 she had suffered some depression on her parent’s marital separation and had a couple of sessions with a psychologist and school counsellor.
44. He noted that she continued to suffer soft tissue musculoskeletal injuries as a result of the accident but noted that she had not required psychiatric or psychological treatment as a result of the accident.  She has been able to return to the workforce and complete her studies.  In his opinion she does not suffer from any major mental illness.  She does not meet the criteria for an Adjustment Disorder with Depressed Mood and Anxiety and that she had not suffered significant functional impairment as a consequent of the injury.  He thought therefore that she had an excellent prognosis and no assessable injuries.
45. In written submissions the Claimant’s counsel submitted the extent of the Claimant’s psychiatric injury should not be minimised.  He relied on the opinion of Dr Parsonage made in December 2016.
46. He quoted from the report from Dr Cocks that she provided a consistent history being frank and forthright in answering questions.  Dr Cocks stated:

“Joanne Jackson did not appear to be manipulating the medico-legal setting for her own agenda.  To her credit, following the motor vehicle accident she had continued to pursue her passions through study and gainful employment”.

47. I accept the opinion of Dr Parsonage that the Adjustment Disorder arises from her frustration at the pain she was experiencing in 2016.  I also accept the opinion of Dr Cocks made in March 2019 that she does not now meet the criteria of Adjustment Disorder.
48. However, the Claimant’s counsel also indicated that she did suffer from anxiety issues in 2013 as a result of an emotionally abusive relationship and her parent’s marriage breakdown.
49. He went on to submit under the subheading of “credits/demeanour” that she had required a number of breaks (four in total) because she was “overwhelmed’ because of the vigorous and at times haranguing cross-examination by counsel for the Insurer.  This was in response to the investigations and materials carried out by the Insurer’s investigator.
50. The Claimant submits that she had sought to promote her professional future by reliance on social medical including Facebook and Instagram postings particularly as a model and actor.
51. I had the opportunity to observe the Claimant during the Assessment Hearing. She seemed to me to be a somewhat sensitive, fragile and anxious person and in my assessment this vulnerability preceded the subject accident.
52. Her subjective experiences of pain in her neck and shoulder particularly have been exacerbated by this vulnerability to some extent.

WHAT IS THE CLAIMANT’S PAST ECONOMIC LOSS?

53. The Claimant had ceased employment as an occupational therapist receptionist in June 2015 and she also states that she ceased employment with the University of Newcastle in the same year.
54. In July 2015 she commenced a double diploma in beauty therapy and specialised makeup with Trends Beauty and Training. She said this required 40 hours of study per week. The accident happened a month later.
55. Following the accident she states that she was unable to undertake her previously enjoyed sports such as martial arts, surfing, gymnastics, aerobatics, fire-twirling and dancing. She began taking pain killers such as Mobic and Voltran and later taken Panadol and Nurofen as she was unable to tolerate Endone.
56. She states that she struggled to complete her beauty course and sometimes she was not able to complete assignments.  She states that her teachers assisted her by allowing her to describe what she would do rather than physically carry out the activities when she was being tested.  Nonetheless she completed the double diploma in July 2016.
57. In March 2016 she commenced employment as a barista at Peak Coffee Group working three days per week which she ceased in July 2016.
58. She then commenced working five days per week as a barista at Grant Street Café at $22.12 per hour, four hours per day, which she continued until March 2018 about 18 months later. She also apparently had additional employment with Maelstrom Productions and Street Promotions during March and May 2017.
59. In June 2017 she moved out of her parents’ home and in April 2018 moved to live in Brisbane where she commenced employment with Sass Beauty and attempted to get various jobs in promotion.  She states that some of these work opportunities had to be rejected because her injuries did not allow her to work to full capacity.
60. In August 2018 she began working as a waitress with Suttons Beach Pavillion. She was also a bartender and barista. The job was part time 25 hours per week at $20 per hour which was all that was offered.
61. Two months later she ceased working for Suttons Beach Pavilion and then six weeks later on 10 December 2018 commenced employment with Carls Jnr and in January 2019 was promoted to manager on a full-time basis.
62. While she was working at Peak Brew she was studying three days per week.  She said she had difficulties with study with both practical’s and sitting through lectures.  She couldn’t do massage or hair styling because of her shoulder and back.
63. She said she left Peak because they were not providing enough work.  The work she did at Grant Street was the same as at Peak.  During this time, she continued with physio.  She said working as a barista involves a lot of body work and she needs to take breaks and leave early on occasions.
64. At Suttons she found she could not lift crates, couldn’t move tables or chairs.  But she states that she left Suttons because the hours started to diminish, and she needed to go somewhere in order to pay the rent.  Less work was being offered.
65. She started work with Carls Jnr as “crew” and then progressed to manager.  She states that this meant more work and less free time.
66. At the time of the Assessment Conference on 16 April 2019 she said she had left Carls Jnr two weeks before as the hours were “too long” and she was taking time off work.  She has since commenced working with Pizza Capers.
67. In January 2019 she commenced a course with the New York Film Academy on the Gold Coast which is two days per week.  She states that she cannot perform some of the physical activities.
68. I gave counsel for both parties the opportunity to let me have written submissions which they both took advantage of, the Insurer first.
69. The Claimant had submitted at the assessment conference a detailed schedule of damages which included precise calculations of past economic loss up to the present time which totalled $71,194 in place of a buffer of $50,000 which had previously been submitted.
70. The Insurer noted that as at the date of the accident the Claimant was a fulltime student.  Indeed I note that in her Claim Form at paragraph 26 she stated she was a student at the date of the accident and in response to paragraph 27 “have you taken time off work, or lost income, because of your injuries?” she responded “yes”.
71. The Insurer submitted that prior to the accident the Claimant was a sporadic and poorly paid participant in the open labour market.
72. In her tax return for year end 30 June 201 she earned an income of $28,184 gross which attracted a tax liability of $2,149 which resulted in an income of about $500 net per week.
73. In the year ended 30 June 2012 the Claimant received what appears to be about $13,000 from personal exertion and $17,000 from Centrelink.  In fiscal 2013 she appears to have received about $8,500 from Centrelink and about $9,000 from paid employment or about 50% of her income for the year.
74. In fiscal 2014 she received over $4,000 from paid employment and just over $12,000 from Centrelink.
75. The Insurer summarises their submission by saying that before the accident the Claimant had been in sporadic low paid employment, had not embarked on any training capable of generating a living wage and that she lacked relevant skills and experience and it has been the better part of a decade from leaving school without significant advancement.
76. Post injury her income in 2016 seems to have dropped to about $14,000 although what percentage arose from her earnings and what part from Centrelink I was not advised.
77. In fiscal 2017 I was advised that her gross income from employment was $17,494 and Newstart/Austudy of $6,045 noting an accumulated HECS deb of $36,210.
78. In fiscal 2018 her gross income was $8,821 from employment and Newstart/Austudy of $10,129.
79. The substantial records of academic training beginning in early 2017 and continuing into 2018 they submit illustrate no liability whatsoever to attend to the course requirements and progress in the ordinary way.  Austudy and HECS Notations in the new tax returns make this a compelling finding of fact.
80. The Insurer submits in fiscal 2016 the Claimant earned about $6,500 from earnings and $6,936 in Centrelink benefits.
81. They submit that the Claimant has become less reliant on Centrelink after than the accident then she had been before the accident; that her studies have become more intense since the accident than before the accident.
82. Her study has culminated in the acquisition of qualifications and then fulltime employment which she has abandoned in the context of taking up new studies to follow a dream, extant for more than a decade, to become an actress.  They note that she has given up the role of a fulltime manager to pursue the student offering agreement to the New York Film Academy as at 17 January 2019.
83. They submit that there is no empirical basis on which a buffer can be made.
84. They note that it is her duty to mitigate her loss.  She has pursued the path of study and abandoned fulltime employment, which generated far more income than any income drawn by her prior to the accident.
85. In her application she notes that she has suffered “some soft tissue damage but it doesn’t impact my ability to work” and that she is not aware of any circumstances
86. regarding her health or capacity of work that would interfere with her ability to perform the duties of any given position.
87. The claimant submitted a report of investigators AHC who supplemented their report with a DVD showing entries from Facebook, Instagram and other social network platforms. The Claimant is pictured posing in gowns, bikinis, sports clothes and street clothes promoting herself as a model, beautician, actress, with skills such as gymnastics. On 31 December 2017 she is shown doing gymnastics on a trampoline which includes somersaults. On 23 May 201 she performs a gymnastic procedure whereby she places both feet on the ground bending backwards so as to place her palms on the ground at the same time. She can flip herself and stand on her hands with legs spread in either direction. The Insurer submits that these are extraordinarilystrenuous and difficult physical manoeuvres. They submit that the Claimant in her evidence seeks to dismiss that the inference she seeks is illogical and unacceptable, especially if matched up against the clinical records of the two general practitioner surgeries.
88. In reply the Claimant submits that notwithstanding her obvious desire to become an actress I should have regard to her loss of a chance where it may be established as damage where it can be proven, on balance, that the chance for receiving a benefit or avoiding an injury was interfered with; Malec v JC Hutton Pty Limited (1990 169 CLR
89. They submit that although the most recent evidence concerning her enrolment into the New York Film Academy in 2019 represents a departure from her previously held positions she should not be penalised for a future employment course which is difficult to predict in relation to income earning outcomes.
90. The Insurer makes no allowance for past loss.
91. I have had regard to the Claimant’s employment since the accident.  It seems to me that but for the accident the Claimant could or would have worked as a barista five hours per day for 63 weeks from date of accident until July 2016.  That totals $18,900.  The balance of the time she would have been engaged in her studies as she was.  It was during this time that she was also heavily engaged in undertaking her physiotherapy.  It was during this time that the insurer submits that the claimant earnt about $6,500.  I therefore assess her net losses up until 1 July 2018 at $12,400.  I note that that equates to about $197 per week.
92. Thereafter until she commenced work with Suttons Beach Pavilion on 27 August 2018 I believe she was continuing to suffer a loss of $100 per week due to her physical and psychological injuries.  I note that that is 112 weeks and therefore a further of $11,200.
93. Thereafter I do not believe she has suffered any economic loss to date.  I therefore calculate her past economic loss as $23,600.
94. I allow superannuation at 9.5% of that figure which I calculate to be $2,242.

WHAT IS THE CLAIMANT’S FUTURE ECONOMIC LOSS?

95. The Claimant submits that I should allow a loss of $400 per week until retirement in 37 years less 15% for vicissitudes.
96. The Insurer submits that I should not allow any loss for the future and that she has failed to satisfy s126 demonstrating any loss of earning capacity.
97. There is a consistent finding that that Claimant suffers a from a 5% Whole Person Impairment of the cervical reason that is not to be trivialised.
98. Although she no longer suffers from an Adjustment Disorder, despite her pre-existing vulnerability, nonetheless she remains frustrated with the pain that she experiences mostly from her neck. In my experience this does have an impact on her earning capacity particularly in the open labour market. I accept that she would try and minimise her injures to any prospective employer and to the New York Film Academy and thus I discount what she has told future prospects for employment and acting or modelling positions.
99. It is difficult to assess what such a loss would be but the past being a good guide for the future I allow $20,000 as a buffer. I make no further deductions for superannuation or vicissitudes that being included in the buffer figure.

WHAT IS THE CLAIMANT’S PAST TREATMENT EXPENSES?

100. The Insurer has paid s83 expenses in the sum of $1,953.50.  The Claimant submits a further $2,508.35 as a charge to Medicare, and 8 consultations with Tami Sports practitioner.
101. Insurer’s counsel made extensive written submissions, inter alia, against my making any allowance beyond the s83 expenses subsequent to the Assessment Conference as directed on 24 April 2019.
102. Counsel for the claimant responded with submissions dated 8 May 2019, submitting brief reasons why I should allow the 8 consultations with “Tami”, but left the balance of the claim for past treatment expense to the solicitors.
103. There followed a further Assessment Conference and numerous emails before a final submission for expenses from Medicare were tendered by the claimant on 3 July.  I note the claimant’s statutory declaration supporting the expenses charged to Medicare for the accident was sworn the same day.  Clearly no one from the claimant’s solicitors’ office had followed up with the claimant until prompted by me.  There was no response to the insurer’s extensive submissions as to why some if not all the expenses should be disallowed because the Claimant was not necessarily attending her treaters for the purpose of injuries arising out of the subject accident.  At least not so far as the clinical notes seem to suggest.
104. The insurer made further submissions as to why the claimant had not proved the expenses, and again I received no response to those submissions, other than to attempt to particularise the claim rather than justify it.
105. As a consequence, I decline to allow any of the alleged treatment expenses charged to Medicare.
106. I do allow the $400 charge by Tami.  I am not sure what relevance, if any, that a Medicare Provider Number was not submitted.  The charges in my assessment are relevant and necessary.
107. Total treatment expenses I assess therefore as $2,353.50 of which $1,953.5 I note as s83 expenses.

WHAT IS THE CLAIMANT’S FUTURE TREATMENT EXPENSES?

108. The Claimant submits that I should make the following allowances:
     • GP consultations, four per year at $100 per consultation for life    $7,793.00
     • Pharmaceutical allowance $3.85 per week for life                     $3.896.00
     • Swimming program, one off                                               $2,000.00
     • Gym based exercise program, one off                                                  $5,000.00
     • Ultrasound guided injections to both shoulders, one off                  $6,000.00
     • Psychological injures, cognitive behavioural therapy

12 sessions at $300                                                                                 $3,600.00

TOTAL                                                                                      $28,290.00

IS THE CLAIMANT ENTITLED TO FUTURE COMMERICAL CARE?

ASSESSMENT OF DAMAGES SUMMARY

COSTS AND DISBURSEMENTS

Signed:         ______________________________

Name:            Allan Cowley         (Claims Assessor)

Date:                           7 July 2019                    _

The findings of this assessment are as follows:

1. The amount of damages assessed in respect of this claim is $52,195.50.
2. The Claimant’s economic loss is reduced by, and the Insurer is to have credit for the sum of $1,953.50 in accordance with s 130 of the Motor Accidents Compensation Act 1999.
3. The amount of the Claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Motor Accidents Compensation Regulations 2015 is $15,340.05 inclusive of GST.
4. Details of the assessment and reasons for this decision are attached to this certificate.

Signed:         ______________________________

Name:            Allan Cowley         (Claims Assessor)

Date:                           7 February 2019                    _

Section 95(2)(b) of the Motor Accidents Compensation Act 1999 provides “An assessment under this Part of the amount of damages for liability under a claim is binding on the insurer and the insurer must pay to the claimant the amount of damages specified in the certificate as to the assessment if:  (a) the insurer accepts that liability under this claim and (b) the claimant accepts that amount of damages in settlement of the claim within 21 days after the certificate of assessment is issued”.

If the claim was made on or after 1 October 2018, s 95(2A) and provisions of the Motor Accidents Compensation Regulations 2005 provide that if the amount of damages is not paid within 20 business days interest may be payable.